Q: What standards will be used in making labor certification determinations under the PERM system?
A: The standards used in making labor certification determinations under the PERM system will be based on:
- whether there are not sufficient United States workers who are able, willing, qualified and available;
- whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and
- whether the employer has met the procedural requirements of the regulations.
Q: How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?
A: The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.
Employers will not be permitted to submit applications by FAX. An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.
Q: How long must supporting documents be retained?
A: The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.
Q: When must applications be signed?
A: Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.
Q: Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?
A: Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.
Q: Must the ten consecutive business days posting of the notice of filing time frame end at least 30 days prior to filing?
A: Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.
Q: How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
A: The employer must recruit under the standards for professional occupations, if the occupation involved is on the list of occupations, published in the PERM regulation, for which a bachelors or higher degree is a customary requirement.
For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.
Q: What is considered an acceptable newspaper and/or acceptable journal and is there a published list?
A: There is no published list of acceptable publications. Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers.
The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity. In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.
Q: Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?
A: No, while the majority of the recruitment must take place within the 30- 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.
Q: If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?
A: Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.
Q: Can one advertisement be used for multiple positions?
A: Yes, an advertisement for multiple positions may be used as long as all provisions in advertising requirements have been met. While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity.
If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.
Q: Must the employer place a job order with the State Work force Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?
A: The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.
The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.
Q: Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?
A: No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.
Q: Must the employer obtain a prevailing wage determination before the employer begins recruitment?
A: No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.
Q: Does a prevailing wage determination expire?
A: Yes, a prevailing wage determination has a limited validity period as specified by the State Workforce Agency (SWA), which may range from no less than 90 days to no more than one year from the determination date. To use a SWA prevailing wage determination, the employer must file its application or begin the recruitment required within the validity period specified by the SWA.
Q: Can the employer include a requirement for a foreign language?
A: Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employers customers, contractors, or employees who can not communicate effectively in English.
Needing to communicate with co-workers or subordinates who can not effectively communicate in English, or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.
Q: Under what circumstances may the alien use experience gained with the employer as qualifying experience?
A: If the alien beneficiary already is employed by the employer, the employer can not require U.S. applicants to possess training or experience beyond what the alien possessed at the time of initial hire by the employer, including as a contract employee:
(1) unless the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or
(2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.
A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.
Q: Does the alien beneficiary need to have a bachelor's or higher degree to qualify for a professional occupation?
A: No, the alien does not need to have a bachelors or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employers willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.
Q: Is the employer permitted to accept an equivalent foreign degree?
A: Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.
Q: Are college and university teacher occupations included in Schedule A?
A: No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.
Q: If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability, what provisions apply?
A: Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, or under the provision for the basic process.
Q: What is Schedule A and who qualifies?
A: Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations.
An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should Schedule A, to determine whether the aliens qualifications meet the provisions requirements.
Q: Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?
A: The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring.
The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the programs integrity.
Q: What is invalidation?
A: The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.
Q: When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?
A: The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.
Q: Will the National Processing Centers issue confirmations of receipt for mail-in applications?
A: No, the National Processing Centers will not issue confirmations of receipt for mail-in applications. If the employer wishes to maintain a record of having mailed the application, it is recommended that a mail service which provides such documentation be used.
Q: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
A: No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application data is entered into the system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically.
If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.
Q: How can a pending application filed under PERM be withdrawn?
A: If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.
Q: In the event of an audit, can an application be withdrawn?
A: An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.
Q: If my application for certification is denied, how long do I have to wait before I can re-apply?
A: Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same alien cannot be filed.
Q: Must the required 30 day job order timeframe end at least 30 days prior to filing?
A: Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing.
Q: I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?
A: Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).
At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.
Q: Do employer and employee must sign the application once it is certified?
A: In order to be valid, applications filed electronically must be signed immediately by the employer, beneficiary, once certified. The DOL has not defined the term "immediately" and it is difficult to require the parties to sign immediately, especially if they are in different work locations. Further, the DOL stipulated that the employer must provide a signed copy of the application if a Certifying Officer requests it during an audit.
Q: How could an employer add information for the mailed PERM application?
A: If an application is submitted by mail, the data then will be entered into the electronically-filed system. This means that there is no way to use the mail system to try to add information that will not fit on the eForm. Mailed applications must be signed before they are sent. They will be rejected if they are filed incorrectly. The DOL expects the mailed forms to take longer to process so they are recommending eFiling for all cases.
Q: How to save the supporting documentation for a PERM labor certification application for mandatory maintenance of PERM audit file?
A: There is no one system that employers must use to save the supporting documentation for a PERM labor certification application. The DOL indicated that the employer has the burden of showing that the supporting documentation, commonly referred to as the audit file, is valid and defensible. This documentation must be retained by the employer for five years from the date of filing. The employer must understand that this is not a formality, but is necessary in order to respond to the DOL in the event the case is audited.
Q: How to get confirmation for mailed-in applications?
A: The DOL will not send confirmation of receipt for PERM applications that are mailed into the National Processing Centers. Therefore, employers mailing applications rather than using the online form will need to maintain their own proof that a PERM application was mailed. It is not clear what the implication of this decision will be for persons who may need proof of filing for H1B one-year incremental extensions beyond the six-year limitation. Practically speaking, it may not matter since the PERM case should be adjudicated within a month or two while the proof of the pending PERM must be at least one year earlier to take advantage of H1B extensions after the end of six years on H1B.
Q: Does the employer have to contact everyone from the state job order listed as a match?
A: If a computerized state employment system identifies workers who match the job requirements for a job order placed by an employer intending to file a PERM application, the DOL confirmed that the employer does not have to contact everyone from the state job order listed as a match. Instead, the employer must only consider or contact those persons who provide affirmative responses to the employer in the manner that the employer includes in the job order.
Q: I have worked for my current employer about 2 years with H-1B visa. When I ask my company to support my green card application, my employer hired lawyer wants to file a Labor Certification for me. I think it may take too long for Labor Certification application, so I discussed the option of National Interest Waiver (NIW) application with the lawyer. But he still think the NIW may not good for me. What I should do?
A: When choosing different Green Card application categories, the Labor Certification may be considered. However, the Labor Certification process is long to get approval. Thus, serious thought could be given to the petition of EB-1 or NIW, according to an applicant's qualification.
If you believe that you could meet the qualification requirements of EB1 or NIW, applying Green Card through Labor Certification should not be your first choice. Another option is to file two petitions at the same time - a petition based on Labor Certification, and another petition based on NIW or EB-1.
Q: I am in H-1B status and work for a online education company. My employer will soon start the Green Card application process for me. I understand that we need to go though the PERM Labor Certification application first. But what is Green Card application process after the Labor Certification approval.
A: For a U.S. employer to seek U.S. permanent residency for an alien employee, the following is the process:
1) The employer should file Form I-140 application, Petition for Alien Worker, and also submit the job offer and other evidence to USCIS.
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status, if an immigrant visa number is available, and the alien beneficiary is in U.S. On the other hand, if the alien beneficiary is outside the United States when an immigrant visa number becomes available, the alien could complete the process of status adjustment at a nearest U.S. consulate office.
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)
Q: My employer will apply for Labor Certification for me soon. What are the processes from the Labor certification to get my Green Card?
A: The ETA Form 9089 is published by U.S. Department of Labor (DOL), and it allows U.S. employers to seek the Labor Certification for a prospective alien employee. To obtain the Labor certification from the DOL, the U.S. employer needs to first get what’s called a prevailing wage determination (PWD) from the DOL.
After the employer has obtained the prevailing wage determination, then they should go through a careful process of advertising and recruiting for the job that the employer is being offered, which is a process for the employer to determine that there are no qualified U.S. workers willing and available to take the offered job. Thereafter, the employer should fill out and submit Form 9089 to the U.S. Department of Labor to apply for the Labor Certification.
If all goes well, the U.S. Department of Labor will issue a Permanent Labor Certification in its response, which allows the employer to submit an immigrant visa petition to U.S. Citizenship and Immigration Services (USCIS) on Form I-140, based on the issued Labor certification from U.S. Department of Labor. After the Form I-140 petition is approved by USCIS for an immigrant visa, the alien employee will be allowed to file Form I-485 application to get U.S. Green Card.
Q: My employer has started the PERM Labor Certification application for me. After the PERM application approval, how long the I-140 petition process will likely take?
A: After the U.S. Department of Labor (DOL) approves the PERM Labor Certification application, the U.S. employer can file an Form I-140 petition with U.S. Citizenship and Immigration Services (USCIS). The Form I-140 petition should includes the original approved PERM application in which the U.S. employer and the alien beneficiary worker must sign it.
The Form I-140 petition should also include the evidence of the U.S. employer’s ability to pay the alien worker’s salary, and documents confirming that the alien beneficiary is qualified for the position, such as a copy of the alien worker’s educational degrees. The approved PERM Labor Certification application is only valid for a certain period of time, therefore the Form I-140 petition must be filed within this validity period. Otherwise the PERM Labor Certification application will expire, and the employer must start over again.
Generally, USCIS may take at least four months for I-140 decisions, and it can take USCIS much longer to adjudicate the Form I-140 petitions. Also, there is an expediting option available, Form I-140 Premium Service, for Form I-140 petition. The employer can pay an extra $1000 fee and request premium processing within 15 calendar days of receipt. A USCIS officer will review the application and determine the appropriate action which would be an approval. Alternatively, an USCIS officer could issue a Request for Further Evidence (RFE), or a Notice of Intent to Deny (NOID). For the case of RFE, USCIS will make a decision within 15 days of receipt of the response.
Q: My employer recently filed Labor Certification for me. Since my wife needs the work permit to work in U.S., can we use the approved Labor Certification for her to work in the United States? or what is the difference between Labor Certification and the Employment Authorization Document (EAD)?
A: The Labor Certification is an immigration process step. Its goal is to "protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers". The Labor Certification is a process of proving that there are no qualified U.S. workers for the position being offered. If there are qualified U.S. workers, then the alien worker cannot be offered the position on a permanent basis.
The Employment Authorization Document (EAD) gives the alien beneficiary authorization to work for any U.S. employer. The Labor Certification itself does not give the alien beneficiary any work authorization. Also, the alien worker must have a job offer from a U.S. employer in order for the employer to file the Labor Certification.
A U.S. employers file the Labor Certification application at the beginning of the alien employee's immigration process. However, an alien worker file the EAD application for himself/herself and spouse at the last step of the immigration process, with the adjustment of status or Form I-485 application. A Labor Certification is typically for a particular U.S. employer who files the Labor Certification with the Department Of Labor. But an alien worker can use an EAD to work for any U.S. employer.
Also, the law forbids alien workers from paying any of the costs associated with an Labor Certification, but alien workers are allowed to pay any and all of the costs associated with the EAD application with USCIS.
Q: My employer sponsored Form I-140 petition and Form I-485 application for me after the PERM Labor Certification was approved. The Form I-485 application for status adjustment has been pending for more than 180 days.
Because the employer's business slow, I changed my job using the AC-21 rule after the 180 day of Form I-485 pending. My new position gives me a different position title, with the same duties as the job described in the PERM Labor Certification form the previous employer. Will the job change and new job title affect my pending Form I-485 application?
A: The AC-21 rule's determination is governed by duties of the job rather than the job title, because the job titles often differ between companies, even for very similar positions. The AC-21 rule uses the terminology of "same or similar job classification." The alien employee's duties listed for the original job offer should be compared with the job duties of the new position to determine within which category he or she may fall.
The job categories from Department Of Labor (DOL) are generally fairly broad. In many situations, this does not present a significant problem. It is important to know that the job duties are generally important, not the specific job title.
Q: What is Foreign Labor Certification iCERT Visa Portal System? How to apply for the Labor Condition Application for Nonimmigrant Workers?
A: The iCERT Visa Portal System provides a single point-of-entry for employers, attorneys, and agents to file and track their employment-based visa applications
It is a portal system in the DOL Foreign Labor Certification site that gives a number of features. Registration creates a single account system for each employer or legal representative and the information in the account is shared throughout the subsequent filings of new LCAs and PERMs.
If you are new to iCERT, you must create a new user account to access any electronic filing system. Begin on the iCERT Home Page http://icert.doleta.gov
The portal will also allow access to the Online Wage Library in the portal rather than as a separate site. According to the agency's information, the new portal system will include the followings:
Q: My employer will soon post notice of a PERM labor certification for me, which requires a posting of ten consecutive business days. The coming Columbus Day is a business day for us, but not for Department Of Labor. What we should do? Thank you very much.
- Prepare applications with the feature of automatic pre-populating of visa forms with the employer's business/contact information.
- Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on behalf of the company.
- Track the status of applications across visa programs through a single account.
- Submit requests to withdraw applications or authorize sub-account users to do so on behalf of the company.
- Notify DOL, at any time, when the employer becomes aware that applications for labor certification have been submitted without its authorization.
- Allow attorneys or agents and their sub-account users such as paralegals to prepare and submit applications taking advantage of all the foregoing features which will be allowed to their clients, employers.
A: As part of the PERM labor certification process, the Department Of Labor (DOL) requires a sponsoring U.S. employer to post notification regarding the filing of a labor certification for ten (10) consecutive business days. The purpose is to notify employees of their employer's intention to file the labor certification application case.
The posting notice should containe all the language and information required by DOL regulations. The manner in which the notice is posted should also be correct. The posting is intended to provide a meaningful opportunity for U.S. workers to compete for the position and to assure that the wages and working conditions of similarly employed U.S. workers will not be adversely affected by the employment of foreign nationals.
Sometimes, a question may be raised with regard to whether the requirement to post a notice for ten consecutive business days was met in a PERM labor certification case, such as whether Martin Luther King Day or Columbus Day should be counted as a business day. For the U.S. Department of Labor and the rest of the Federal Government, thay are holidays. But for many U.S. employers, thay are ordinary working days.
As a precaution, it is better for U.S. employer to post notices for an extra day, and not count federal holidays within the ten-day requirement. If the federal holiday was overlooked by U.S. employer when posting the PERM labor certification notice, then petitioner needs to make the arguments and give explainations pointing out relevant factual issues.
Q: My employer will file labor certification for me soon, and will also sponsor my Green Card application later. How to draft the labor certification carefully to avoid problems at the Form I-140 application step?
A: The chances of the Form I-140 application success for an immigrant visa are mainly determined at the Labor Certification step. Therefore, the labor certification needs to be drafted carefully to avoid problems at the Form I-140 application step, such as the employer's "ability to pay" issue. An alien beneficiary may get Form I-140 application success if the employer is sponsoring the Green Card application from the time the labor certification is filed.
Ability to pay means a company’s ability to pay the wage listed on the labor certification to the foreign worker. Many green card applicants are under the mistaken impression that the ability to pay calculation begins only at the time of filing the Form I-140 petition. But actually, a company must demonstrate ability to pay from the time of filing the labor certification until the alien beneficiary has adjusted his or her status and become a U.S. permanent resident.
The easiest and most preferred method to demonstrate that a company has the ability to pay, and obtain an Form I-140 approval, is for the alien beneficiary to work for the company, and be paid the wage listed on the labor application from the time of the labor certification filing.
USCIS accepts only 2 forms of evidence to show the ability to pay: 1) an audited financial statement, which are time intensive and costly to prepare, especially for smaller companies, or 2) the company’s tax returns. Either way, the net income of the company must be greater than the wage payment.
Sometimes, USCIS may send a Request For Evidence (RFE) letter sending to the Form I-140 petitioner to ask for evidence of “ability to pay all”. This means the company must demonstrate its ability to pay not just the alien beneficiary, but also the wages of all other employees they have filed I-140 petitions for. For some companies, reporting a high net income on the tax return is not usually in their best interest. This can lead to th Form I-140 being denied if the company does not report a net income high enough to cover the total of all pay gaps for all Form I-140s ever filed.
Q: I am approaching the 6 years of H-1B status in United States. Can I ask my employer to file PERM Labor Certification for me now? or is it too late for me? and what are the rules for H-1B extensions beyond 6 years?
A: The allowable time for H-1B status in U.S. is 6 years. For an alien to be eligible to extend H-1B status beyond 6 years, it is necessary to qualify certain requirements and conditions, as defined in the "American Competitiveness in the Twenty First Century Act (AC21)". The first requirement is that the H-1B holder must be the beneficiary of an Labor Certification filed 365 days before (known as the 365-day rule), or the Labor Certification and USCIS Form I-140 must be approved already.
The 365-day rule relates to an alien's ability to extend the H-1B status beyond 6 years. Therefore, it is often recommended that the U.S. employer should file the PERM Labor Certification application at least 365 days before the end of the six years of H-1B status, but it does not mean that the PERM Labor Certification cannot be filed within the 6th year of H-1B status.
The outcome of a Labor Certification filing is not connected to the time the beneficiary has remaining in H-1B status. A Labor Certification application decision does not depend upon the immigration status of the alien beneficiary. The U.S. Green Card application is related to a future job offer concept, unlike the ability to obtain H-1B extensions to live and work legally in U.S.
Some aliens with H-1B status often ask whether it is too late for the U.S. employer to file a PERM Labor Certification for them, because they are approaching the 6th year of H-1B status, and the economic downturn have delayed the employer's ability to file the PERM Labor Certification early for these H-1B status holders. Some people may assume that it is difficult to file a PERM Labor Certification, if one is in the 6th year of H-1B status already, but actually Labor Certification can be filed at any time, even in the 6 years of H-1B status in U.S.
Q: Can I File a U.S. Green Card Application for Myself?
A: We know most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.
The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.
Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.
The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.
Q: My employer made mistake on the ETA Form 9089, therefore the PERM Labor Certification was denied for a small error. What could we do thereafter?
A: When alien workers apply for a U.S. Green Card through the employment in the United States, in most cases, they rely on the U.S. employer's job offer to successfully complete the PERM Labor Certification. The PERM Labor Certification process requires the U.S. employer to conduct recruitment, place advertisements for the alien worker’s job position, and submit the ETA Form 9089 to the U.S. Department of Labor (DOL) and attest that no qualified, willing U.S. workers are available for the offered position.
After receiving the U.S. employer's submitted ETA Form 9089, the U.S. Department of Labor will either approve the Labor Certification application, or simply deny the Labor Certification application. After the DOL approves the application, the U.S. employer can complete the second step in the Green Card application process, which is to fill an immigration visa petition on Form I-140 with U.S. Citizenship and Immigration Services (USCIS).
The ETA Form 9089 is submitted online by U.S. employer on the U.S. Department of Labor's website. The most common mistake that U.S. employers make when completing the ETA Form 9089 is not double checking that every information they have supplied in the form is correct. After the form submission online, to correct any errors on the form, the only solution is to withdraw the application and refile it.
The employers are allowed to send corrected ETA Form 9089s to the DOL by mail. Also, sometimes, the solution of withdrawing and refiling is not possible online, because allowed advertisements time period have expired by the time the U.S. employer notices the mistake.
The U.S. Department of Labor may deny an ETA Form 9089 for trivial errors, such as spelling mistakes in the employer’s name or the alien worker’s home address. In this situation, the employer needs to restart the process again which may take long time. Therefore it is very importance that U.S. employers double check all information on the ETA Form 9089.
Q: My employer needs to have the PERM Labor Certification advertisement for a job position. What are the requirements for PERM advertisement?
A: The PERM Labor Certification process requires a test of the job market of the United States. An U.S. employer offering a job position must undergo an recruitment process, which includes:
1) two Sunday newspapers of general circulation for the area of intended employment;
2) a State Workforce Agency (SWA) posting;
3) an internal Notice of Filing;
4) three additional forms of recruitment.
PERM Labor Certification advertisements for professional positions should name the employer, provide directions for sending resumes, and provide a description of the position specific enough to apprise U.S. workers of the job opportunity.
The advertisements should also provide the geographic area for the position with specificity, and should not include job requirements that exceed the actual requirements. While these specifications may seem straightforward, any error in the advertisement may result in a denial of the PERM Labor Certification application.
Q: We recently received an Request For Evidene from USCIS for our Form I-140 petition, asking for employer's evidence of "ability to pay". Does this mean that our Form I-140 may be denied?
A: The employer's "ability to pay" is a requirement for the employer filing an Form I-140 immigrant petition. The petition should demonstrate that the U.S. employer has sufficient money to pay the offered wage for the alien applicant with the permanent of full-time position within the company. To approve an Form I-140 petition, the USCIS requires proof of the company's ability to pay the offered wage, starting with the labor certification filing date.
USCIS will deny the Form I-140 petition if the employer is failed to establish the ability to pay the offered wages. If your petition is denied due to this reason, the petitioner can file a motion to reopen the case, and try to obtain the I-140 approval if there is new evidence.
The following issues may indicate the employer's failure to establish the ability to pay the offered wages:
1) the employer's years of a negative revenue;
2) the employer's financial fluctuations were unusual, and reflect the overall ability of the company to meet its wage obligations;
3) the employer has an unusual set of setbacks in business and income;
4) the employer has a serious other conditions in the business.
Q: What is the Supervised Recruitment for PERM Labor Certification? How does a PERM application get selected for Supervised Recruitment?
A: Due to the high rate of unemployment in the United States in the past years, U.S. Department of Labor (DOL) has suggested it will subject more Labor Certification (PERM) cases to "supervised recruitment." The Supervised recruitment is one of the tools DOL uses to protect the integrity of the PERM Labor Certification program. Thus, employers need to understand what supervised recruitment is, and prepare for additional recruitment steps and delays.
Under regulation 20 CFR656.21, if U.S. Department of Labor determines an employer substantially failed to produce required documentation, or the provided PERM application documentation was inadequate, or a material misrepresentation was made with respect to the PERM application, or if the Certifying Officer (CO) determines it appropriate for other reasons, the employer may be required to conduct supervised recruitment.
If an employer is required to undergo the supervised recruitment, the DOL will direct the PERM Labor Certification recruitment effort. This includes approval of the employer's advertisement text by a Certifying Officer prior to the employer's placement of the advertisements. The employer should arrange for the advertisements to run within the designated timeframe, using the forms of recruitment specified by the CO, such as one of the required advertisements ran online on Monster.com or Hotjobs.com.
Q: Can I Upgrade My Green Card Application Case from EB3 to EB2 Category?
A: There are some alien applicants who are interested in the possibility of what is referred to as "upgrading" their Green Card application EB3 cases to employment-based, second preference (EB2). This strategy is used following the approval of an I-140 petition in the employment-based, third preference (EB3) category.
The observation of the monthly U.S. Department of State's visa bulletin reveals a major difference between the EB2 and EB3 immigrant categories, for some countries like India, Mexico, Philippines, and China. For example, in recent years, EB2 India has fluctuated between 2004 and 2010, EB3 India has slowly advanced for the same period, from 2002 to 2003. Thus, the EB2 India's visa movement is faster than EB3.
For many EB3 visa applicants, the immigrant visa waiting time is unavoidable. However, some employment-based immigrant visa applicants may qualify to change to EB2 visa category because of the following reasons:
* having obtained advanced degrees,
* having additional job experience,
* having new job offers that satisfy the requirements for EB2 filings;
* an increase in the complexity and sophistication of one's job duties and a commensurate increase in salary.
The change to EB2 immigrant visa category does not actually "upgrade" the previously filed Labor Certification (LC) and Form I-140 petition. This EB3 to EB2 "upgrade" process requires the filing of a new Labor Certification and related Form I-140 petition, requesting EB2 classification.
Using the EB2 category, the obvious benefit is a potentially accelerated path to eligibility for filing for adjustment of status to permanent residence with form I-485, the strategy involves requesting retention of an earlier and more favorable priority date, which is possible in cases with an earlier-approved Form I-140 petition.
Q: My employer will file PERM Labor Certification for me. I want to know how to get the prevailing wage before file ETA Form 9089?
A: The Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers. Therefore, the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. U.S. employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Helpdesk Center (NPWHC), or by accessing other legitimate sources of information such as the Online Wage Library (http://www.flcdatacenter.com/), available for use in some programs.
An employer must use ETA Form 9141 to request a Prevailing Wage Determination (PWD) from the NPWHC. The ETA Form 9141 is available in the Forms and Instructions section of the OFLC website at http://www.foreignlaborcert.doleta.gov/form.cfm
In the ETA Form 9089 filing, the employer should include the the NPWHC provided information including:
1) the prevailing wage,
2 the prevailing wage tracking number,
3) the SOC (O*NET /OES) code,
4) the occupation title,
5) the skill level,
6) the wage source,
7) the determination date, and
8) the expiration date.
All employers filing the ETA Form 9089 should attest to having conducted recruitment prior to filing the application. The employer has the option of filing an application online or by mail. But Department of Labot recommends that employers file online at www.plc.doleta.gov, it will ensure the employer has provided all required information, bacause an online application can not be submitted if the required fields are not completed. Additionally, when completing the ETA Form 9089 online, the preparer is provided prompts to assist in ensuring accurate data entry.
The electronic Online Permanent System requires employers to set up individual accounts. An employer must set up a profile by selecting the appropriate profile option in the online system. After registering and establishing an account at www.plc.doleta.gov, employer can fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.
Q: Can I Use the “On-the-Job” Experience in My PERM Labor Certification Application?
A: The PERM labor certification application should state the employer’s minimum educational and experience requirements for the offered position. It could be an issue if the alien employee gained all or a part of the required experience for the position while employed by the sponsoring employer. The required education and experience should be limited to the minimum for any person applying for the job. The U.S. Department of Labor (DOL) is skeptical of the accuracy of the stated minimum requirements, if these requirements exceed the qualifications when an applicant was initially hired by the employer.
The DOL is only interested in the minimum requirements for a person to do the job, not the requirements for the ideal candidate. Thus, the DOL will be skeptical if the employer files a PERM labor fora position which states that the requirements for this particular job are a bachelor’s degree plus five years of experience "for the ideal candidate."
Although the employer may consider the position as already filled by an alien employee, but DOL views that the alien employee's job is temporary, allowed to work in U.S. temporarily based on the H1-B or L-1 or other working visa. There should be a test of the U.S. labor market for the permanent position to be filled by the U.S. employer, to ensure that there are no able and willing U.S. workers who are minimally qualified and can perform the alien employee's job adequately.
Using on-the-job experience in a PERM labor certification application case may increase the risk of a DOL audit and decreases the chances of PERM labor certification application approval. It is unfortunate that restrictions on the use of experience with the sponsoring employer influences some people to change employers. In some cases, alien employee may need to use on-the-job experience to qualify for particular positions. While it is challenging, it is also possible to use experience gained with the sponsoring employer.
Q: Does My Employer Must Pay the Prevailing Wage on the Labor Certification?
A: The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers. To comply with the statute, the U.S. Department of Labor's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. U.S. employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs.
The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B visa program requires the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.
To obtain approval of an I-140 immigrant petition for a foreign national worker, an employer must show ability to pay the offered wage on Labor Certification. USCIS' regulations state that the Form I-140 petitioner must be able to pay the offered wage from the priority date forward. It means that an employer must show the ability to pay the prevailing wage from the year in which the Labor Certification was filed.
Q: How to determine the "prevailing wage" in a Labor Certification application? Does my employer must pay the listed prevailing wage on the Labor Certification?
A: The prevailing wage determination issued by the Department of Labor’s National Prevailing Wage Center (NPWC), establishes the minimum wage the employer must pay to the sponsored employee at the time he or she receives their green card. Obtaining a prevailing wage determination (PWD) for the sponsored green card position is a mandatory step that must be completed prior to filing Form 9089, the PERM Labor Certification Application.
The prevailing wage determination by DOL will tell the employer how much is normally paid to people in jobs equivalent to the one the foreign national has been offered. The determination is good for only a limited amount of time, depending partly on when the DOL does its annual updating of wage information.
Finding out the prevailing wage is a crucial step, because the employer must offer at least this amount in the labor certification process. Even if the employer is offering a wage the DOL would find appropriate, a PERM labor certification application can be denied if the DOL learns that no formal PWD was issued. This is different from the process of obtaining an H-1B or other nonimmigrant work visa, where no formal DOL statement of prevailing wages is absolutely required.
Because many factors go into a wage determination, such as geographic location, job title, discipline, job duties, required education, and so on, it is not possible to predict the exact amount of the prevailing wage until the DOL provides it. The employer is obligated to pay the sponsored employee either the prevailing wage or the offered salary, whichever is higher, at the time they receive their green card. The required wage must also be used during the recruitment portion of the PERM process.
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